With the recent changes to the Federal Fair Work Act, adverse action cases have become more prominent in employee and employer relations, dismissals, terminations and workplace grievances. In recent years I have facilitated numerous successful adverse action outcomes providing advice and help, mediation and representation.
This very powerful remedy under the Fair Work Act is increasingly being accessed by employees whose incomes exceed the high income threshold ($142,000 pa until 1 July 2018) and cannot thus take proceedings for unfair dismissal to ventilate grievances about dismissals. And one of the most powerful reasons for this is sec 361 of the Act which contains a provision which reverses the traditional burden of proof in civil cases, by placing the effective onus of disproving an allegation of a breach of the general protections provisions of the Act (adverse action) upon the entity or person alleged to have breached them.
It is true that presently the Federal Court has what I call an “awkward” view of the legal efficacy of some of these provisions, particularly what constitutes a workplace right; but presumably that will be settled by a Full Court soon. There are many blogs which I have published explaining the current legal implications of adverse action, and what it means, and they are available at the Employment Law Blog tab.
Meanwhile, sec 361 provides as follows
Reason for action to be presumed unless proved otherwise
(1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction.
On 1 January 2014, the Fair Work Act was amended to enable parties to general protections cases to agree for the determination of the case to remain with the Fair Work Commission instead of proceeding to a hearing in the Federal Court or the Federal Circuit Court of Australia. There is a growing awareness of the complexity and expense of this litigation being determined by the Federal Court, which to put it mildly is a technically challenging and intimidating court, even for experienced lawyers. With this realization has come a growing acceptance by employers to consent to the Fair Work Commission resolving the dispute, much less expensively and much quicker. The Commission has recently decided (June 2015) that in the exercise of its jurisdiction where this occurs, it has the power to order compensation for both economic and non-economic loss for humiliation, stress and so forth.
The Federal Court has issued a temporary reinstatement order in an application for a remedy for adverse action in which a union has claimed that an employer contravened the general protections provisions of the Fair Work Act by dismissing an employee based upon a disability, namely diabetes. The proceedings allege a contravention of sec 351(1) of the Act. The judge concluded at the hearing of an application by the union for interlocutory relief that the balance of convenience, the usual test adopted by courts in deciding whether to preserve the status quo pending a trial of the substantive issue, favoured the interim reinstatement of the employee, without any interruption to service, upon the employee giving undertakings which were intended to ensure that his diabetes was properly monitored for his and his fellow employees’ safety.
CFMEU v Peabody Energy Australia Coal Pty Ltd (2014) FCA 394 delivered on 10 April 2014
The very vexed question of what constitutes a workplace right has again been illustrated in a Federal Court decision in which the Court was being asked to grant an interim injunction to restrain Queensland prison authorities from continuing the suspension of a prison officer who had granted permission for her to be quoted in the media as raising safety issues in the workplace. Justice Collier pointed out that the conduct of speaking publicly to the media was a contravention of the applicable enterprise agreement and in any event said that he was not “persuaded at this stage” that to do so was the exercise of a workplace right and thus protected from adverse action.
United Voice v GEO Group Australia Pty Ltd (2014) FCA 928 handed down on 26 August 2014